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Volume 1 - Opinions of Counsel SBEA No. 115

Opinions of Counsel index

Aged exemption (residence) (occupancy) - Real Property Tax Law, § 467:

The aged exemption authorized by section 467 of the Real Property Tax Law should not be denied to an otherwise qualified person merely because he is confined to an institution, hospital or nursing home; consideration should be given to the applicant’s intent to return to his home after his confinement, to the probability of his returning and to the use of his home during his absence.

Our opinion has been requested as to whether the aged exemption may be continued on property owned by an otherwise qualified person who, because of ill health, enters a nursing home and allows his property to be occupied by relatives or rented to others.

Section 467 of the Real Property Tax Law provides, in part, that no exemption shall be granted “unless the real property is the legal residence of and is occupied in whole or in part by the owner or by all of the owners of the property.”

The mere fact that an otherwise qualified person is confined to an institution or hospital or nursing home due to poor health does not necessarily mean that such person has relinquished the occupancy of his legal residence. In making a determination as to eligibility in such case, an assessor must take into consideration the individual’s intent as to returning to his home after his confinement is or may be ended, the probability of his returning, and the use of the premises during his absence.

As is readily apparent, an assessor must use a great deal of discretion in making a decision in confinement situations. Though a person may be confined, for instance to a mental institution, it may turn out in many cases that such confinement is only temporary in that the individual is subsequently released from confinement. One of the best indications of intent is the manner in which the property is occupied during an owner’s absence.

If the property is leased for a long term it is our opinion that there is no intent to occupy the premises and an application for exemption on such premises should be denied. On the other hand if the property is occupied by someone rent free or at a rental which merely covers the owner’s expense, there would appear to be an intent to return and the exemption would be available. Thus, property which is occupied by a relative or friend for purposes of protection and maintenance of the property during the owner’s absence would, in our opinion, continue to qualify for exemption provided the owner thereof is otherwise qualified. If an owner has been confined for a number of years or is expected to be confined for a number of years and in addition thereto either removes his personal property or leases all or a portion of the property usually occupied by him, we feel the occupancy requirement has not been satisfied.

The intention of the Legislature in enacting section 467 of the Real Property Tax Law was to benefit aged persons with limited incomes, and we do not think that the Legislature intended to deny this exemption to an otherwise qualified person because of extreme illness. Nevertheless the residency and occupancy requirements must be satisfied and there is no hard and fast rule which may be applied in every case. A judgment must be made upon the particular facts and circumstances of the confinement in each case.

April 14, 1972

NOTE: Construes law prior to L.1985, c.440; see Opinion 10-69.